Citation NR: 9732272
Decision Date: 09/23/97 Archive Date: 09/29/97
DOCKET NO. 95-34 679 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for the residuals of a
shrapnel wound to the forehead.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Michelle D. Doses, Associate Counsel
INTRODUCTION
The veteran had active service from November 1940 to November
1945.
This appeal arises from a January 1994 rating decision
denying the veteran’s claims for service connection for
bilateral hearing loss and for the residuals of a shrapnel
wound to the forehead.
It is herein noted that the veteran’s representative, in his
Informal Hearing Presentation, has raised the issue of
service connection for post traumatic stress disorder. This
issue is referred to the Regional Office for appropriate
consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
bilateral hearing loss and for the residuals of a shrapnel
wound to the forehead. He asserts that he sustained the
shrapnel wound to the forehead when a ship which he was
aboard was sunk and that his hearing loss is related to a
ruptured eardrum he experienced in service.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1997), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the veteran has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claims for service
connection for bilateral hearing loss and the residuals of a
shrapnel wound to the forehead are well grounded claims.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
originating agency.
2. Bilateral hearing loss, first manifested more than 4
decades post active service, is not shown to be related to
active service.
3. No evidence demonstrating residuals of a shrapnel wound
to the forehead related to the veteran’s period of military
service has been submitted.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well grounded
claim for service connection for bilateral hearing loss.
38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1997); 38 C.F.R.
§ 3.303 (1997).
2. The veteran has not submitted evidence of a well grounded
claim for service connection for the residuals of a shrapnel
wound to the forehead. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R.
§ 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking service connection for bilateral
hearing loss and for the residuals of a shrapnel wound to the
forehead. The legal question to be answered initially is
whether the veteran has presented evidence of well grounded
claims; that is, claims that are plausible. If he has not
presented well grounded claims, his appeal must fail with
respect to these claims and there is no duty to assist him
further in the development of these claims because such
development would be futile. 38 U.S.C.A. § 5107(a). As will
be explained below, the Board finds that these claims are not
well grounded.
The service medical records reflect that, on examination for
entrance into service, the veteran’s hearing was found to be
15/15 in both ears. Treatment records show that it was noted
that the veteran’s ship was sunk in August 1942. A treatment
record dated in August 1945 discloses that it was noted that
the veteran’s eardrum was punctured. On examination for
separation from service, the veteran’s hearing was found to
be 15/15 in both ears on whispered voice testing, and his
skin and head were found to be normal.
A letter from the Enlisted Services and Records Division
discloses that a Purple Heart was awarded to the veteran for
wounds received in action on August 1942 while attached to
USS QUINCY.
A Department of Veterans Affairs (VA) examination report
dated in December 1962 reflects that the veteran’s head and
ears were found to be normal. VA outpatient treatment
records dated in February 1992 disclose that the veteran
reported that his hearing acuity was decreasing as he had
difficulty hearing the television.
An audiological evaluation from Larry H. Bowers, M.D., dated
in September 1992 shows that the veteran was found to have
mild to moderate sensorineural hearing loss in the left ear
and moderate sensorineural hearing loss in the right ear.
38 U.S.C.A. § 1110 provides, in pertinent part, that a
veteran is entitled to disability compensation for disability
resulting from personal injury or disease incurred in
service. “A determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service.” (emphasis added).
Watson v. Brown, 4 Vet.App. 309, 314 (1993).
Even if there is no record of a hearing loss in service, its
incurrence coincident with service will be presumed if
sensori-neural high frequency hearing loss was manifest to a
compensable degree within one year after service.
The veteran has contended that service connection should be
granted for bilateral hearing loss. Although the evidence of
record shows that the veteran currently has bilateral
sensorineural hearing loss, there has been no showing that
the veteran’s hearing loss is related to service. While
there is a note of record that the veteran’s eardrum was
punctured, on separation from service, the veteran’s hearing
was found to be 15/15 in both ears on whispered voice
testing. The first evidence of record pertaining to a
hearing problem and showing a hearing loss is from 1992, over
4 decades after the veteran’s separation from service. No
medical opinion or other medical evidence relating the
veteran’s hearing loss to service or any incident of service
has been presented.
The veteran has also contended that service connection should
be granted for the residuals of a shrapnel wound to the
forehead. While the record reflects that the veteran’s ship
was sunk and he received the Purple Heart for wounds received
in action, there is no record of a shrapnel wound to the
forehead. Moreover, on separation from service, his skin and
head were found to be normal. In addition, on VA examination
in 1962, the veteran’s head was found to be normal, and the
veteran’s claims file is otherwise negative for evidence of
residuals of a shrapnel wound to the forehead. The veteran
has submitted no evidence to show that he currently has
residuals of a shrapnel wound to the forehead. Rabideau v.
Derwinski, 2 Vet.App. 141, 144 (1992).
38 U.S.C. § 1154(b), provides that in the case of any veteran
who engaged in combat with the enemy in active service during
a period of war, campaign, or expedition, the Secretary shall
accept as sufficient proof of service connection of any
disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service. Service connection of such injury or
disease may be rebutted by clear and convincing evidence to
the contrary.
Section 1154(b) does not create a statutory presumption that
a combat veteran’s alleged disease or injury is service-
connected, but lightens the burden of a veteran who seeks
benefits for an allegedly service-connected disease or injury
and who alleges that the disease or injury was incurred in,
or aggravated by, combat service. The statute sets forth a
three-step analysis. First, it must be determined whether
there is “satisfactory lay or other evidence of service
incurrence or aggravation of such injury or disease.” 38
U.S.C. § 1154(b). Second, it must be determined whether this
evidence is “consistent with the circumstances, conditions,
or hardships of such service.” Id. If these two inquiries
are met, the Secretary “shall accept” the veteran’s evidence
as “sufficient proof of service-connection,” even if no
official record of such incurrence exists. Id. If both of
these inquiries are satisfied, a factual presumption arises
that the alleged injury or disease is service-connected.
Third, it must be determined whether the government has met
its burden of rebutting the presumption of service-connection
by “clear and convincing evidence to the contrary.” Id. In
this regard, the medical nexus requirement or element set
forth in Caluza v. Brown, 7 Vet.App. 498 (1995), for purposes
of establishing a well-grounded claim is not affected or
altered by the three-step sequential test interpreting
section 1154(b) set forth by the U.S. Court of Appeals for
the Federal Circuit in Collette v. Brown, 82 F.3d 389 (Fed.
Cir. 1996).
In short, no medical evidence has been submitted to show that
the veteran currently has residuals of a shrapnel wound to
the forehead or that he has bilateral hearing loss that is
related or linked to service or any incident thereof.
A well grounded claim requires more than a mere assertion;
the claimant must submit supporting evidence. Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992). The veteran is
certainly capable of providing evidence of symptomatology,
but a layperson is generally not capable of opining on
matters requiring medical knowledge, such as the degree of
disability produced by the symptoms or the condition causing
the symptoms. See Robinette v. Brown, 8 Vet.App. 69, 74
(1995); Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Espiritu
v. Derwinski, 2 Vet.App. 492, 494 (1992). See also Harvey v.
Brown, 6 Vet.App. 390, 393-94 (1994). Here, the veteran has
not submitted any medical opinion or other medical evidence
which supports his claims. The evidence now of record fails
to show that the veteran has bilateral hearing loss or the
residuals of a shrapnel wound to the forehead related in any
manner to his period of military service. Thus, these claims
may not be considered well grounded. 38 U.S.C.A. §§ 1110,
5107; 38 C.F.R. § 3.303. Since the claims are not well
grounded, they must, accordingly, be denied. See Edenfield
v. Brown, 8 Vet.App. 384, 390; (1995); Grottveit v. Brown, 5
Vet.App. 91 (1993).
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for the residuals of a
shrapnel wound to the forehead is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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